Gray v. VIRGINIA SECRETARY OF TRANS.

Present: All the Justices

PATRICK R. GRAY, ET AL.

v. Record No. 071220 OPINION BY JUSTICE CYNTHIA D. KINSER
June 6, 2008
VIRGINIA SECRETARY OF
TRANSPORTATION, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge

This appeal involves a constitutional challenge to

certain contractual agreements between the Commonwealth of

Virginia and the Metropolitan Washington Airports Authority

concerning the Dulles Toll Road. The sole issue is whether

the circuit court erred in sustaining demurrers and pleas in

bar asserting sovereign immunity. Because we conclude that

certain constitutional provisions are self-executing and

thus waive the Commonwealth’s sovereign immunity, we will

reverse in part the circuit court’s judgment.

A. Standard of Review

“ ‘Where no evidence is taken in support of a plea in

bar, the trial court, and the appellate court upon review,

consider solely the pleadings in resolving the issue

presented.’ ” Niese v. City of Alexandria, 264 Va. 230,

233, 564 S.E.2d 127, 129 (2002) (quoting Lostrangio v.

Laingford, 261 Va. 495, 497, 544 S.E.2d 357, 358 (2001)).

“The facts as stated in the pleadings by the plaintiff are
taken as true for the purpose of resolving the special

plea.” Id. (citing Lostrangio, 261 Va. at 497, 544 S.E.2d

at 358). “The existence of sovereign immunity is a question

of law that is reviewed de novo.” City of Chesapeake v.

Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004).

B. The Parties 1

The appellants, Patrick R. Gray and James W. Nagle, are

both residents of Fairfax County and allege that they are

frequent users of the Dulles Toll Road. The appellees

include several entities and officials of the Commonwealth:

the Commonwealth Transportation Board, the Virginia

Department of Transportation (VDOT), the Virginia Secretary

of Transportation, and the Virginia Commissioner of

Transportation. For purposes of this opinion, we will refer

to these appellees as “the Commonwealth Defendants.”

The Metropolitan Washington Airports Authority (MWAA)

is also an appellee. The MWAA is a regional public entity

established by an interstate compact, which was approved by

the United States Congress in 1986. See 49 U.S.C. § 49101

et seq. The General Assembly and the City Council of the

1
Because the circuit court decided this case upon
demurrers and special pleas in bar of sovereign
immunity without an evidentiary hearing, we will recite
the facts as alleged in the pleadings. McMillion v.
Dryvit Systems, Inc., 262 Va. 463, 465, 552 S.E.2d 364,
365 (2001).

2
District of Columbia enacted legislation to establish the

MWAA. Code § 5.1-152 et seq.; D.C. Code § 9-901 et seq.

According to Code § 5.1-153, the MWAA is “a public body

corporate and politic and independent of all other bodies,”

see also 42 U.S.C. § 49106(a)(2); D.C. Code § 9-902, created

for the purpose of “acquiring, operating, maintaining,

developing, promoting and protecting Ronald Reagan

Washington National Airport and Washington Dulles

International Airport.” Code § 5.1-156.

C. Historical Background

On September 7, 1950, the United States Congress

enacted legislation authorizing “the construction,

protection, operation, and maintenance of a public airport

in or in the vicinity of the District of Columbia.” Pub. L.

81-762, 64 Stat. 770. Construction for the airport

commenced in 1958, and the airport was dedicated on November

17, 1962, as Dulles International Airport. In 1984, it was

renamed Washington Dulles International Airport (Dulles

Airport). As part of the overall project, the Dulles

Airport Access Highway (DAAH) was constructed to connect the

airport to Interstate 495 (the Beltway) and Interstate 66.

The entire road is limited to airport traffic only and has

no exits west of the Beltway, other than direct access to

the airport. Due to public demand for local access routes

3
off of the DAAH, the United States Department of

Transportation and the Director of the then existing

Metropolitan Washington Airports entered into an agreement

with the Commonwealth, dated July 6, 1981 (“the 1981

Agreement”), to construct a new road in the existing right-

of-way for the DAAH. This new road, which has access for

local traffic, is known as the Dulles Toll Road. VDOT

constructed the Dulles Toll Road in the early 1980’s and has

maintained and operated the highway since it was opened to

public use. By deed of easement dated January 9, 1990, the

MWAA conveyed to the Commonwealth the right to use

additional land within the DAAH right-of-way to widen the

Dulles Toll Road.

On March 24, 2006, the Secretary of Transportation

executed a Memorandum of Understanding (MOU) between the

Commonwealth of Virginia and the MWAA concerning the Dulles

Corridor Metrorail Project 2 (Metrorail Project) and the

Dulles Toll Road. The MOU recites that the Dulles Toll Road

was “constructed upon property owned by the federal

government and leased to [the MWAA], pursuant to several

deeds of easement to the Commonwealth of Virginia for the

construction of the Dulles Toll Road.” In the MOU, the

2
The Metrorail Project is for the purpose of expanding
the existing metrorail system to Dulles Airport.

4
parties agreed that the Commonwealth, acting through VDOT

and the Commonwealth Transportation Board, “will transfer

possession and control over the Dulles Toll Road right-of-

way and all improvements thereto to the [MWAA],” that the

MWAA will assume all operational, maintenance, toll-setting,

toll-collection, debt, and financial responsibility for the

Dulles Toll Road, and that the MWAA will construct certain

phases of the Metrorail Project. Pursuant to the MOU, the

Commonwealth agreed to transfer to the MWAA funds dedicated

for the design and construction of the Metrorail Project and

revenues collected from operation of the Dulles Toll Road.

Finally, the MOU provides that “[r]evenues collected from

the Dulles Toll Road shall be used for any and all costs

related to the operation, maintenance and debt service of

the Dulles Toll Road, and the design, construction and

financing of the Dulles Corridor Metrorail Project.”

On December 29, 2006, the VDOT and the MWAA entered

into the first of several agreements contemplated by the

MOU. Among other things, the agreement transferred to the

MWAA the authority to set toll rates for the Dulles Toll

Road.

D. The Controversy

On January 11, 2007, Gray and Nagle (the Plaintiffs)

filed a complaint against the Commonwealth Defendants and

5
the MWAA seeking declaratory and injunctive relief. The

Plaintiffs asserted that, without prior authorization from

the General Assembly, the Commonwealth Defendants lacked the

authority “to convey or transfer valuable Dulles Toll Road

assets . . . to MWAA[; and] to delegate or assign to MWAA

the responsibility and authority to direct and supervise the

operation and maintenance of the Dulles Toll Road,” and to

“fix[] and collect[] tolls on the Dulles Toll Road.” The

Plaintiffs further alleged that “[t]he contracting away,

transfer, delegation or assignment . . . of taxing power to

MWAA pursuant to the December 29, 2006, Agreement [was] an

ultra vires act and violates the Constitution of Virginia.”

They asserted that the power to tax, or in this case,

collect tolls, is vested in the General Assembly and that

this power may only be delegated “to the governing bodies of

counties, cities, towns and regional governments.” In

support of their position, the Plaintiffs cited Article IV,

Section 1 and Article VII, Sections 2, 3, and 7 of the

Constitution of Virginia. The Plaintiffs requested that the

circuit court declare the MOU and the December 29, 2006

Agreement “illegal and invalid” and enjoin the

implementation of both agreements.

The Commonwealth Defendants and the MWAA responded by

filing demurrers and pleas in bar asserting, among other

6
things, that the plaintiffs’ claims are barred by the

doctrine of sovereign immunity and that the circuit court,

therefore, lacked jurisdiction to hear the action. In their

memorandum opposing the demurrers and pleas in bar, the

Plaintiffs argued that their complaint alleged not only

“violations of the separation of powers clauses of the

Virginia Constitution (Article I, [Section] 5 and Article

III, [Section] 1)” but also a violation of Article IV,

Section 1 pertaining to the delegation of the General

Assembly’s taxing power. The Plaintiffs claimed that these

provisions of the Virginia Constitution are self-executing

and thus constitute a waiver of the Commonwealth’s sovereign

immunity.

The circuit court sustained the demurrers and pleas in

bar and dismissed the complaint. In a letter opinion, which

the circuit court incorporated into its final order, the

court characterized the Plaintiffs’ claims as being rooted

in Article IV, Section 1, and Article VII, Sections 2, 3,

and 7 of the Virginia Constitution. The circuit court also

referenced “the separation of powers clauses of the Virginia

Constitution” cited in the Plaintiffs’ memorandum in

opposition to the pleas in bar, i.e., Article I, Section 5

and Article III, Section 1. The circuit court concluded

7
that these provisions are not self-executing and thus do not

constitute a waiver of sovereign immunity. 3

On appeal to this Court, the Plaintiffs assert

essentially the same argument as they presented in the

circuit court. They contend that the “doctrine [of

sovereign immunity] does not bar claims grounded in self-

executing provisions of the Constitution.” Contrary to the

circuit court’s holding, the Plaintiffs assert that Article

I, Section 5, Article III, Section I, and Article IV,

Section 1 of the Virginia Constitution are self-executing

provisions and that their claims alleging violations of

these constitutional provisions are therefore not barred by

the doctrine of sovereign immunity. 4

E. Analysis

3
The circuit court also concluded that the doctrine of
sovereign immunity applies to the MWAA. The court found
that the MWAA should be treated like a municipality and was
performing a governmental function for which it is immune.
Alternatively, the court concluded that because the MWAA was
in privity of contract with the Commonwealth under the
December 29, 2006 Agreement, it shared in the Commonwealth’s
immunity. On appeal to this Court, the Plaintiffs do not
assign error to these rulings; therefore, they will not be
reviewed on appeal. Rule 5:17(c).
4
The Plaintiffs do not discuss Article VII, Sections
2, 3, and 7. Thus, we will not consider those
constitutional provisions in our analysis. See Rule 5:27;
Elliott v. Commonwealth, 267 Va. 396, 422, 593 S.E.2d 270,
286 (2004) (failure to brief an assignment of error
constitutes a waiver of the argument).

8
 “[T]he doctrine of sovereign immunity is ‘alive and

well’ in Virginia.” Messina v. Burden, 228 Va. 301, 307,

321 S.E.2d 657, 660 (1984). “It is an established principle

of sovereignty, in all civilized nations, that a sovereign

State cannot be sued in its own courts . . . without its

consent and permission.” Board of Public Works v. Gannt, 76

Va. 455, 461 (1882). “One of the most often repeated

explanations for the rule of state immunity from suits in

tort is the necessity to protect the public purse.”

Messina, 228 Va. at 307, 321 S.E.2d at 660. “[W]hile

maintenance of public funds is important, another equally

important purpose of the rule is the orderly administration

of government.” Id. at 308, 321 S.E.2d at 660. Sovereign

immunity is “a rule of social policy, which protects the

state from burdensome interference with the performance of

its governmental functions and preserves its control over

state funds, property, and instrumentalities.” Hinchey v.

Ogden, 226 Va. 234, 240, 307 S.E.2d 891, 894 (1983). The

doctrine also serves in “preventing citizens from improperly

influencing the conduct of governmental affairs through the

threat or use of vexatious litigation.” Messina, 228 Va. at

308, 321 S.E.2d at 660; accord Afzall v. Commonwealth, 273

Va. 226, 231, 639 S.E.2d 279, 282 (2007).

9
 Thus, “as a general rule, the sovereign is immune not

only from actions at law for damages but also from suits in

equity to restrain the government from acting or to compel

it to act.” Hinchey, 226 Va. at 239-40, 307 S.E.2d at 894

(citing Larson v. Domestic & Foreign Corp., 337 U.S. 682

(1949)). “Sovereign immunity may also bar a declaratory

judgment proceeding against the Commonwealth.” Afzall, 273

Va. at 231, 639 S.E.2d at 282. And because the Commonwealth

can act only through individuals, the doctrine applies not

only to the state, but also to certain government officials.

Messina, 228 Va. at 308, 321 S.E.2d at 661. “[H]igh level

governmental officials have generally been accorded absolute

immunity.” Id. at 309, 321 S.E.2d at 661, accord Alliance

to Save the Mattaponi v. Commonwealth, 270 Va. 423, 455, 621

S.E.2d 78, 96 (2005).

The Commonwealth, however, can waive sovereign immunity

and consent to being sued in its own courts. See, e.g.,

Rector & Visitors of the Univ. of Va. v. Carter, 267 Va.

242, 244, 591 S.E.2d 76, 78 (2004). “Only the General

Assembly, acting in its capacity of making social policy,

can abrogate the Commonwealth’s sovereign immunity.”

Alliance, 270 Va. at 455, 621 S.E.2d at 96 (citing

Commonwealth v. Luzik, 259 Va. 198, 206, 524 S.E.2d 871, 876

(2000)). “The Commonwealth and its agencies are immune from

10
liability . . . in the absence of an express constitutional

or statutory waiver of sovereign immunity.” Billups v.

Carter, 268 Va. 701, 707, 604 S.E.2d 414, 418 (2004). “A

waiver of sovereign immunity will not be implied from

general statutory language but must be explicitly and

expressly stated in the statute.” Alliance, 270 Va. at 455,

524 S.E.2d at 871 (citing Hinchey, 226 Va. at 241, 307

S.E.2d at 895).

The Plaintiffs acknowledged during oral argument before

this Court that if the constitutional provisions upon which

they rely, Article I, Section 5; Article III, Section 1; and

Article IV, Section 1, are not self-executing, then their

claims alleged in this action are barred by the doctrine of

sovereign immunity. Thus, the dispositive issue before us

is whether these constitutional provisions are self-

executing. 5

5
The Plaintiffs’ standing to bring this action was not
challenged in the circuit court and thus is not a question
before this Court. See Martin v. Ziherl, 269 Va. 35, 39,
607 S.E.2d 367, 368 (2005) (failure to raise challenge to
standing at trial level precludes this Court from
considering the issue on appeal). We reiterate, however,
that “[t]he point of standing is to ensure that the person
who asserts a position has a substantial legal right to do
so and that his rights will be affected by the disposition
of the case.” Cupp v. Board of Supervisors of Fairfax
County, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984).
“Thus, it is not sufficient that the sole interest of [a]
petitioner is to advance some perceived public right or to
redress some anticipated public injury when the only wrong

11
 We begin our analysis by examining the constitutional

provisions at issue. Article I, Section 5 provides in

relevant part: “That the legislative, executive, and

judicial departments of the Commonwealth should be separate

and distinct.” Va. Const. art. I, § 5. Article III,

Section 1 states in relevant part: “The legislative,

executive, and judicial departments shall be separate and

distinct, so that none exercise the powers properly

belonging to the others, nor any person exercise the power

of more than one of them at the same time.” Va. Const. art.

III, § 1. And, Article IV, Section 1 of the Constitution of

Virginia provides, in its entirety: “The legislative power

of the Commonwealth shall be vested in a General Assembly,

which shall consist of a Senate and House of Delegates.”

Va. Const. art. IV, § 1.

If a constitutional provision is self-executing, no

further legislation is required to make it operative. Gill

v. Nickels, 197 Va. 123, 129, 87 S.E.2d 806, 810 (1955);

City of Newport News v. Woodward, 104 Va. 58, 60, 51 S.E.

193, 193 (1905); see also Black’s Law Dictionary 1391 (8th

ed. 2004) (defining the term “self-executing” as “effective

he has suffered is in common with other persons similarly
situated. Virginia Beach Beautification Comm’n v. Board of
Zoning Appeals, 231 Va. 415, 419, 344 S.E.2d 899, 902
(1986).

12
immediately without the need of any type of implementing

action”). In Robb v. Shockoe Slip Foundation, 228 Va. 678,

324 S.E.2d 674 (1985), we explained how to determine whether

a constitutional provision is self-executing:

A constitutional provision is self-executing
when it expressly so declares. See, e.g., Va.
Const. art. I, § 8. Even without benefit of such
a declaration, constitutional provisions in bills
of rights and those merely declaratory of common
law are usually considered self-executing. The
same is true of provisions which specifically
prohibit particular conduct. Provisions of a
Constitution of a negative character are
generally, if not universally, construed to be
self-executing. . . .

. . . .

A constitutional provision may be said to be
self-executing if it supplies a sufficient rule by
means of which the right given may be employed and
protected, or the duty imposed may be enforced;
and it is not self-executing when it merely
indicates principles, without laying down rules by
means of which those principles may be given the
force of law.

Id. at 681-82, 324 S.E.2d at 676 (citations and quotations

omitted).

As the Plaintiffs point out, this Court has held in a

long line of cases that the Virginia constitutional

provision prohibiting the General Assembly from enacting any

law whereby private property is taken or damaged for public

uses without just compensation (currently found in Article

I, Section 11) is self-executing and that a landowner may

13
enforce the constitutional right to just compensation in a

common law action. Kitchen v. City of Newport News, 275 Va.

378, 393, 657 S.E.2d 132, 140 (2008); Burns v. Board of

Supervisors of Fairfax County, 218 Va. 625, 627, 238 S.E.2d

823, 825 (1977) (citing Heldt v. Elizabeth River Tunnel

Dist., 196 Va. 477, 482, 84 S.E.2d 511, 515 (1954) and Swift

& Co. v. City of Newport News, 105 Va. 108, 114-15, 52 S.E.

821, 824 (1906)). As we explained, “such an action is not a

tort action; rather, it is a contract action and, therefore,

is not barred by the doctrine of sovereign immunity.” Bell

Atlantic-Virginia, Inc. v. Arlington County, 254 Va. 60, 62,

486 S.E.2d 297, 298 (1997) (citing Jenkins v. County of

Shenandoah, 246 Va. 467, 470, 436 S.E.2d 607, 609 (1993) and

Burns, 218 Va. at 627, 238 S.E.2d at 825); see also Wiecking

v. Allied Medical Supply Corp., 239 Va. 548, 553, 391 S.E.2d

258, 261 (1990) (“The sovereign is as liable for its

contractual debts as any citizen would be, and that

liability may be enforced by suit in the appropriate circuit

court.”).

In contrast, we held in Robb that Article XI, Section 1

of the Virginia Constitution is not self-executing. 228 Va.

at 683, 324 S.E.2d at 677. That constitutional provision

states:

14
 § 1. Natural resources and historical sites of
the Commonwealth

To the end that the people have clean air, pure
water, and the use and enjoyment for recreation
of adequate public lands, waters, and other
natural resources, it shall be the policy of the
Commonwealth to conserve, develop, and utilize
its natural resources, its public lands, and its
historical sites and buildings. Further, it shall
be the Commonwealth's policy to protect its
atmosphere, lands, and waters from pollution,
impairment, or destruction, for the benefit,
enjoyment, and general welfare of the people of
the Commonwealth.

Va. Const. art. XI, § 1. There, the plaintiff sought to

enjoin the Governor of Virginia and the Virginia Department

of General Services from demolishing certain state-owned

buildings. Id. at 680, 324 S.E.2d at 675. In reaching the

conclusion that Article XI, Section 1 is not self-executing,

the Court pointed out that the provision’s language “invites

crucial questions of both substance and procedure,” such as

whether “the policy appl[ies] only to the State and to state-

owned sites, or does it extend to private developers and to

privately-owned sites[; w]ho has standing to enforce the

policy[; and whether] the remedy [is] solely administrative,

solely judicial, or a mixture of the two?” Id. at 682, 324

S.E.2d at 676-77. Because that constitutional provision is

not self-executing, the Court reversed the decree of the

trial court enjoining the defendants from taking certain

15
actions and dismissed the bill of complaint. Id. at 683, 324

S.E.2d at 677.

None of the constitutional provisions at issue in this

case invite such questions of substance and procedure.

Article I, Section 5 and Article III, Section 1 are the

separation of powers provisions cited by the Plaintiffs.

Article I, Section 5 is contained in the Bill of Rights, and

such constitutional provisions are generally considered to

be self-executing. Robb, 228 Va. at 681, 324 S.E.2d at 676.

Furthermore, no additional legislation is needed to carry

into effect the clear mandate contained in Article I,

Section 5. See Woodward, 104 Va. at 61, 51 S.E. at 194.

Article III, Section 1, which provides that the

“legislative, executive, and judicial departments shall be

separate and distinct,” not only reiterates the mandate

found in Article 1, Section 5, but also expressly adds the

prohibition “that none [of the departments can] exercise the

powers properly belonging to the others, nor any person

exercise the power of more than one of them at the same

time.” Va. Const. art. III, § 1. While Article III,

Section 1 is not found in the Bill of Rights, it is of a

negative character and specifically prohibits certain

conduct. See Robb, 228 Va. at 681-82, 324 S.E.2d at 676.

16
Thus, we conclude that Article I, Section 5 and Article III,

Section 1 are self-executing.

Article IV, Section 1, unlike the previous provisions

discussed, is neither contained in the Bill of Rights nor

cast in a negative character. However, it does provide a

clear rule that the General Assembly, consisting of a House

of Delegates and a Senate, shall be vested with the

legislative power of the Commonwealth. This constitutional

provision needs no further legislation to make it operative.

Gill, 197 Va. at 129, 87 S.E.2d at 810. It provides a

sufficient rule by which the duty imposed may be enforced.

Robb, 228 Va. at 682, 324 S.E.2d at 676. It would be an

anomaly to say that a constitutional provision vesting the

legislative power in the General Assembly is not self-

executing and thus requires further legislation to make it

operative. Therefore, we also conclude that Article IV,

Section 1 is self-executing. See Marshall v. Northern Va.

Transp. Auth., 275 Va. 419, 435-36, 657 S.E.2d 71, 80 (2008)

(applying provisions of Article IV, Section 1).

“The characterization of a constitutional provision as

‘self-executing’ or not, is generally only a conclusion as to

whether the constitutional intent is to provide a presently

effective rule, by means of which the right given may be

enjoyed and protected and the duties imposed may be enforced

17
without supplementary legislation.” Jacobs v. City of

Bunkie, 737 So.2d 14, 18 (La. 1999) (quoting Student Gov’t

Ass’n v. Board of Supervisors, 264 So.2d 916, 919 (La.

1972)). The fact that a self-executing constitutional

provision is operative without the need for supplemental

legislation means that the provision is enforceable in a

common law action. Compare Kitchen, 275 Va. at 392, 657

S.E.2d at 140 (holding that a self-executing provision

“permits a property owner to enforce his constitutional right

to just compensation in a common law action”), with Robb, 228

Va. at 683, 324 S.E.2d at 677 (dismissing a bill of complaint

because a constitutional provision was not self-executing).

The constitutional provisions at issue in this case place

duties and restrictions upon the Commonwealth itself and its

departments. To give full force and effect to the provisions

as self-executing, a person with standing must be able to

enforce them through actions against the Commonwealth. Thus,

we further hold that the self-executing constitutional

provisions before us waive the Commonwealth’s sovereign

immunity.

F. Conclusion

We hold that Article I, Section 5; Article III, Section

1; and Article IV, Section 1 are self-executing

constitutional provisions and thereby waive the

18
Commonwealth’s sovereign immunity. Because the Plaintiffs

do not challenge the circuit court’s finding that the

doctrine of sovereign immunity applies to the MWAA, our

conclusion applies only to the Commonwealth Defendants.

Thus, we will reverse the judgment of the circuit court with

regard to the Commonwealth Defendants and remand this case

for further proceedings.

Affirmed in part,
reversed in part,
and remanded.

19